Richard Glossip and the End of the Death Penalty

The case of Richard Glossip, who is scheduled to be executed in Oklahoma this afternoon, illustrates the unreliability of the application of the death sentence.

Photograph by Oklahoma Department of Corrections via AP

Update: Richard Glossip’s execution was delayed on Wednesday afternoon by thirty-seven days because of questions concerning the chemicals used for lethal injection.

If the Supreme Court abolishes the death penalty soon, which Justice Antonin Scalia said, last week, that he “wouldn’t be surprised” to see, the case of Richard Glossip is likely to be a significant point of reference in accounts of how it happened.

The state of Oklahoma is scheduled to execute Glossip by lethal injection this afternoon. He was sentenced to death for a murder that, the record in the case makes clear, he did not commit. He had never been arrested before. He had no history of violence. His conviction was based on the testimony of the murderer, a man named Justin Sneed, who confessed to using a baseball bat to bludgeon the victim to death. Sneed claimed that Glossip had pressed him to commit the murder and, in exchange for his testimony against Glossip, which was coaxed by a police interrogator, he got a sentence of life in prison rather than death.

“I’m trying to stop them from killing me by any method,” Glossip told The Intercept this summer, “because of the fact that I’m innocent.”

Glossip was twice convicted and sentenced to execution. The Oklahoma Court of Criminal Appeals overturned the first conviction, holding that his lawyer’s “conduct was so ineffective that we have no confidence that a reliable adversarial proceeding took place.” After that ruling, the prosecution stipulated that no physical evidence linked Glossip to the crime scene. He was convicted again based largely on Sneed’s testimony, although his account of Glossip’s alleged involvement diverged from what he said at the first trial, which diverged from his original confession to police. According to Glossip’s lawyers, Sneed has given eight “very different” accounts.

Last January, the Supreme Court stayed Glossip’s execution so that it could hear a challenge that he and other death-row inmates had made to the use of the drug midazolam as the anesthetic in a three-drug lethal-injection procedure, before the other drugs were administered to paralyze the inmate and then to stop his heart. The challenge came after Oklahoma’s gruesome execution of an inmate in 2014, when the state used midazolam and it failed to fully anesthetize him, causing him searing pain.

Three months ago, at the end of the recent Court term, the Justices upheld the use of the drug by 5–4. They said that Glossip’s lawyers had not shown that the state had a better option than midazolam or that the use of midazolam with the other drugs was “sure or very likely to result in needless suffering.”

The first reason that the Glossip case is likely to be a point of reference is the widely commented-on dissent by Justice Stephen Breyer, who, “rather than try to patch up the death penalty’s legal wounds one at a time,” devoted forty-one pages to arguing “that the death penalty violates the Eighth Amendment”—that is, the constitutional clause prohibiting the infliction of “cruel and unusual punishments.” Breyer’s dissent laid out his reasons: “(1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.”

The Glossip case doesn’t illustrate all of these reasons, but it provides a case study in the unreliability of the application of the death sentence. Glossip’s current lawyers have raised serious doubts about his guilt, which make his conviction dubious and his death sentence unjust. His counsel in his first trial was reprehensibly bad. His counsel in his second trial exceeded the very low standard for ineffective counsel, but did a poor cross-examination of Sneed, the main witness against Glossip. From the decision to charge Glossip with a capital crime to some unsavory tactical moves in the second trial, the prosecution was overzealous and may have crossed the line into misconduct.

Cases like Glossip’s are all too common. In 2005, the Center on Wrongful Convictions, at Northwestern, reported that fifty-one of the hundred and eleven people exonerated of capital crimes since the death penalty was reinstated, in the nineteen-seventies, “were sentenced to death based in whole or part on the testimony of witnesses with incentives to lie,” including some who were “promised leniency in their own cases,” as Sneed was in this one.

The second reason that this case is likely to be a point of reference in any narrative of death-penalty abolition is the way that it has played out in an Oklahoma state court this month. After his loss at the Supreme Court, Glossip was scheduled to be executed on September 16th, but his lawyers asked the Oklahoma Court of Criminal Appeals for a stay of execution so that they could put together a case based on newly obtained accounts from two witnesses, which, they said, destroyed the credibility of the testimony implicating Glossip. The court granted a stay “in order for this court to give fair consideration to the materials included,” but, on Monday, decided not to let a state trial court consider the new evidence. It ended the stay, so the state can execute Glossip today, unless the Supreme Court intervenes.

The opinion for the majority in the state appeals-court decision is technical, and this sentence is key: “The claims do not fall within the guidelines of the post-conviction procedure act allowing this Court to consider the merits or grant relief.” The opinion said, basically, that the new evidence wasn’t new and that Glossip’s lawyers were raising issues already raised and rejected on a previous appeal. A dissent pointed out that the failure to review his claims could be a miscarriage of justice: Glossip is about to be executed and “the State has no interest in executing an actually innocent man.”

The ruling has nothing to do with the merits of the case. It has everything to do with the state’s attempt to bring death-penalty cases to an end because of “the legal principle of finality of judgment,” as the majority opinion put it—even if that means denying a hearing that might exonerate an innocent man. The Supreme Court has favored this kind of impatience for decades. It has repeatedly put an end to federal cases, even when a federal appeals court had good reasons for not wanting to end a case—not wanting to permit a state to execute a death-row inmate who might be innocent or who might have been wrongfully sentenced to death.

The Breyer dissent this summer laid out why there are often strong reasons to address the merits of these cases:

Researchers have calculated that courts (or State Governors) are 130 times more likely to exonerate a defendant where a death sentence is at issue. They are nine times more likely to exonerate where a capital murder, rather than a noncapital murder, is at issue.

Why is that so? To some degree, it must be because the law that governs capital cases is more complex. To some degree, it must reflect the fact that courts scrutinize capital cases more closely. But, to some degree, it likely also reflects a greater likelihood of an initial wrongful conviction. How could that be so? In the view of researchers who have conducted these studies, it could be so because the crimes at issue in capital cases are typically horrendous murders, and thus accompanied by intense community pressure on police, prosecutors, and jurors to secure a conviction. This pressure creates a greater likelihood of convicting the wrong person.

Breyer’s dissent riled Scalia. He responded with a concurrence that said that Breyer’s “argument is full of internal contradictions and (it must be said) gobbledy-gook.” In a more sober mood, during a speech last week at Rhodes College, in Tennessee, Scalia said that there are four votes on the Supreme Court to rule the death penalty unconstitutional—those of the moderate liberals. In the term that opens next week, four of the thirty-four cases the Justices have said, so far, that they will review deal with the death penalty. As Rory Little of the University of California’s Hastings College of Law wrote on Scotusblog, this could be “the biggest Eighth Amendment term in forty years.”

In the wake of Pope Francis’s visit, Robert J. Smith, who is a visiting scholar at the University of Texas at Austin School of Law, suggested that there might be a fifth vote to abolish capital punishment. In Slate, he compared the Pope’s call for “global abolition of the death penalty,” based on the values of dignity and hope, with themes of recent Supreme Court rulings that have limited the application of the death penalty and other excessive punishment. He quoted opinions of Justice Anthony Kennedy, who was in the audience when the Pope addressed Congress.

Smith didn’t predict that Kennedy will vote to rule that the death penalty is unconstitutional, but he quoted a recent opinion of the Justice, in which he wrote, “The Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be.” That’s the kind of Kennedy homily that makes Scalia apoplectic, but it’s in the spirit of the Breyer dissent. It’s also the kind of statement that can inspire many Americans, including state-court judges far from Washington, D.C.

A second dissent from Monday’s state-court ruling in Oklahoma, allowing the state to execute Glossip, quoted from the same Kennedy opinion: “The death penalty is the gravest sentence our society may impose.” The state court, the dissent said, should have granted Glossip’s request for a new evidentiary hearing to investigate his claim of innocence. Why? Because—in Kennedy’s words again—those who face “that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution.”

Lincoln Caplan, a former New Yorker staff writer, is a senior research scholar at Yale Law School and the author of “American Justice 2016: The Political Supreme Court.”

Considering recent trends, the abolition of capital punishment is probably only a matter of time.

As the years passed, Tom grew more entrenched in his homelessness. He was absorbed in lofty fantasies and private missions, aware of the basest necessities and the most transcendent abstractions, and almost nothing in between.